[HISTORY: Adopted by the Village Board of the Village of
Coloma 6-30-1994 as Title 5, Ch.
1, of the 1994 Code. Amendments noted where applicable.]
This chapter allows the Village of Coloma to grant to a grantee,
its successors and assigns, a nonexclusive franchise to construct,
install, maintain, and operate a cable television system for a term
of up to 15 years, provided that the grantee conforms to the conditions,
limitations, and requirements of this chapter. This chapter may be
amended from time to time by the Village through the enactment of
amendments thereto.
For the purpose of this chapter, the following terms, phrases,
words and their derivations shall have the meaning given herein. When
not inconsistent with the context, words used in the present tense
include the future, words in the plural number include the singular
number and words in the singular number include the plural number.
A system of antennas, cables, wires, lines, towers, waveguides
or other conductors, converters, equipment or facilities, located
within the Village, owned by grantee and used for, or in the process,
of providing cable service to subscribers.
Federal Communications Commission.
The agreement or contract setting forth specific rights,
obligations, terms, conditions and understandings between the Village
and a grantee, adopted and executed pursuant to and under the authority
of this chapter, and shall also include generally the Village's
grant of authority to construct, install, maintain and operate a cable
television system and/or provide cable service within the Village,
including the grant of any rights, powers, privileges, duties, liabilities
or obligations, under this chapter.
A person or entity to whom or which a franchise under this
chapter is granted by the Village Board and the lawful successors
or assigns of such person or entity.[1]
Any revenue received by grantee from a subscriber in connection
with the operation of a cable television system including, but not
limited to, basic subscriber service monthly fees, pay cable fees
and installation and reconnect fees revenues. "Gross revenues" does
not include any taxes on services furnished by grantee and imposed
directly upon any subscriber or used by the state, village, or other
governmental unit and collected by grantee on behalf of said governmental
unit.
This Village of Coloma Cable Television Franchise Ordinance
("this chapter").
The surface of and space above and below any public street,
road, highway, freeway, lane, alley, court, sidewalk, parkway or drive,
now or hereafter existing as such within the Village.
Any person or entity who subscribes to a cable service provided
by grantee by means of a cable television system.
The Village of Coloma, State of Wisconsin, in its present
incorporated form or in any later recognized, consolidated, enlarged
or reincorporated form.
The present governing body of the Village or any future body
constituting the legislative body of the Village.[2]
The grantee shall have the right to apply to the Village for
renewal or extension of the franchise. Both the Village and grantee
shall comply with all the provisions of the Cable Act, 47 U.S.C. § 546,
regarding renewal procedures.
Should a grantee's franchise be revoked, terminated or
expire and there is no judicial or administrative review of the termination
or expiration taking place, the grantee shall begin removal within
90 days of termination or expiration of all property owned by the
grantee and placed within the public right-of-way pursuant to the
authority granted by the franchise, and/or this chapter unless permitted
by the Village to abandon said property to a purchaser. The grantee
shall not be required to remove any property owned by grantee and
placed within a public right-of-way, which property grantee is otherwise
legally permitted to place within the public right-of-way.
All of the rights and privileges and all the obligations, duties
and liabilities created by this chapter shall pass to and be binding
upon the successors of the Village and the successors and assigns
of any grantee; and the same shall not be assigned or transferred
without the written approval of the Village hereunder, which approval
shall not be unreasonably withheld without a showing to good cause;
provided, however, that this section shall not prevent the assignment
or pledge of a franchise or cable television system by a grantee as
security for debt without such approval; and provided further that
transfers or assignments of a franchise between any parent and subsidiary
corporation or between entities of which at least 51% of the beneficial
ownership is held by the grantee or any parent corporation shall be
permitted without the prior approval of the Village. The sale, transfer,
or assignment of a material portion of the tangible assets of a grantee
to an unrelated third party shall be considered an assignment subject
to the provisions of this section.
A.
The parties to the sale or transfer of a franchise shall make a written
request to the Village for its approval of a sale or transfer of the
franchise.
B.
The Village shall reply in writing within 30 days of the request
and shall indicate approval of the request or its determination that
a public hearing is necessary due to potential adverse effect on the
franchise subscribers.
C.
If a public hearing is deemed necessary pursuant to § 218-5B, the Village shall conduct such hearing within 30 days of such determination and notice of any such hearing shall be given 14 days prior to the hearing by publishing notice thereof once in a newspaper of general circulation in the area being served by the franchise. The notice shall contain the date, time and place of the hearing and shall briefly state the substance of the action to be considered by the Village.
D.
Within 30 days after the public hearing, the Village shall approve
or deny in writing the sale or transfer request.
E.
If the Village fails to render a final decision on the sale or transfer
request within 120 days of said request, such request shall be deemed
granted.
F.
The parties to the sale or transfer of a franchise only, without
the inclusion of a cable television system in which at least substantial
construction has commenced, shall establish that the sale or transfer
of a franchise only will be in the public interest.
G.
The grantee, upon transfer, shall within 60 days thereafter file
with the Village a copy of the deed, agreement or other written instrument
evidencing such sale, transfer of ownership or control or lease, certified
and sworn to as correct by the grantee.
Any franchise is for the present territorial limits of the Village.
For any area henceforth added thereto during the term of the franchise,
the cable television system shall be extended wherever household density
reaches 30 homes per plant mile, including interconnecting trunks.
The grantee shall at all time protect the privacy of all subscribers
pursuant to the provisions of the Cable Act, 47 U.S.C. § 551.
The grantee shall not condition service on the subscriber's grant
of permission to disclose information which, under federal or state
law, cannot be disclosed without the subscriber's explicit consent.
The cable television system shall meet or exceed the technical
standards set forth in FCC regulations (47 CFR 76.601) and any other
applicable technical standards required by federal law.
A.
The grantee shall not design, install or operate its cable television
system in a manner that will interfere with the signals of any broadcast
station, the facilities of any public utility, the cable system of
another grantee, individual or master antennas used for receiving
television or other broadcast signals.
B.
The grantee shall perform proof of performance tests in a manner
and with the frequency required by the FCC and shall, upon request,
provide to the Village a written report showing the results of such
tests. If a location fails to meet applicable performance specifications,
the grantee shall take corrective action, retest the locations, and
advise the Village of action taken and results achieved.
The Village shall have the right subject to § 218-7, upon 72 hours' prior written notice, to inspect, during normal business hours, grantee's books, receipts, maps, plans, service complaint logs, performance test results, and other storage media, and other like materials related to the operation of a cable television system or to provide cable services, necessary to enforce the requirements and obligations imposed upon grantee by this chapter, or applicable law.
A.
The grantee shall provide a line, either staffed or with answering
capabilities, available 24 hours a day.
B.
The grantee shall answer service requests for service interruptions
within 48 hours, excluding weekends and holidays. Problems should
be rectified in 48 hours or in the case of a dispute, in fewer than
30 days. Subscribers shall be able to request from the grantee that
a service visit occur during a four-hour block of time in either the
morning or the afternoon.
Upon request, a grantee shall as part of the acceptance of a
franchise, provide a complete written description or map of the cable
television system in the Village. Such written description or map
shall be updated as additions or changes are made.
A.
All rates and charges shall be established by a grantee. Provided,
however, the Village reserves its right to the maximum extent possible
to regulate the rates of a grantee, as permitted by federal or state
law, regulation or rule. In the event after the effective date of
this chapter any federal or state law, regulation or rule is at any
time changed, modified, amended or repealed so as to allow for increased
authority of the Village to regulate a grantee's rates, the Village
shall be permitted to do so to the maximum extent possible.
B.
A grantee shall provide the Village with a rate schedule of the grantee's
charges at the time of grantee's acceptance of a franchise. Subsequent
additions or amendments to rates and service charges shall be filed
with the Village at least 30 days prior to the implementation of the
addition or amendment. The grantee shall give subscribers at least
30 days advance written notice before instituting a rate increase.
All transmission and distribution structures, lines and equipment
erected by a grantee within the Village shall be so located as not
to cause interference with the proper use of streets, alleys, and
other public ways and places, and not to cause interference with the
rights of or reasonable convenience of property owners who adjoin
any of the streets, alleys, or other public ways and places.
A.
In case of any disturbance of pavement, sidewalk, driveway, or other
surfacing, the grantee shall first give notice to the Director of
Public Works of any contemplated disturbances of pavement, sidewalk,
driveway, or other surfacing, and shall, at its own cost and expense
and in a manner approved by the Director of Public Works, replace
and restore all pavement, sidewalk, driveway, or other surface of
any street or alley disturbed in as good condition as before such
work commenced. The grantee, shall otherwise comply with Village ordinance
relating to street openings.
B.
If, at any time during the period of a franchise, the Village shall elect to alter or change the location or grade of any street, alley, or other public way, the grantee, upon reasonable notice by the Village, shall remove, relay and relocate its cable television system at its own expense. If any construction by the grantee is in violation of the provisions of Subsection A of this section, the grantee shall likewise, upon reasonable notice by the Village, remove, and relocate its property in such a manner as to remedy such violation at its own expense.
C.
The grantee shall not place poles or other fixtures where the same
will interfere with any existing gas, electric, telephone, or other
fixture, water hydrant, or main. All such poles or other fixtures
placed in any street shall be placed between the outer edge of sidewalk
and the curbline, and those placed in alleys shall be placed close
to the line of the lot abutting on such alley in such a manner as
not to interfere with the usual travel on the streets, alleys, and
public ways. However, nothing in this chapter shall prohibit the use
by the grantee of existing public utility poles where practical
D.
A grantee shall, on the request of any person holding a building
moving permit issued by the Village, temporarily raise or lower its
wires to permit the moving of buildings. The expenses of such temporary
raising or lowering of the wires shall be paid by the person requesting
the same, and the grantee may require such payment in advance. The
grantee shall be given not less than 72 hours in advance notice to
arrange for such temporary wire changes.
E.
The grantee, to the same extent that the Village has such authority,
may trim trees that overhang streets, alleys, sidewalks, and public
places of the Village so as to prevent the branches of such trees
from coming in contact with the cable television system of the grantee.
The grantee shall defend and save the Village and its agents
and employees harmless from all claims, damages, losses, and expenses
including attorney's fees sustained by the Village on account
of any suit, judgment, execution, claim, or demand whatsoever arising
out of the construction, installation, operation or maintenance of
a cable television system except for acts of the Village, its agents
or employees, unless said acts are at the request of and under the
direction or supervision of the grantee.
A.
The Village shall notify the grantee within 10 days after the presentation of any claim or demand, either by suit or otherwise made against the Village on the part of the grantee. For any claims or demands covered by § 218-14 the Village or any other indemnified parties shall tender the defense thereof to the grantee and upon acceptance of the defense the grantee shall have the sole right to defend, settle and compromise any claims and the Village and any other indemnified parties shall cooperate fully therein. The grantee shall furnish to the Village, before any franchise becomes effective, satisfactory evidence in writing that the grantee has in force and will maintain in force during the term of the franchise public liability insurance.
B.
All grantees shall maintain throughout the term of a franchise a
general comprehensive liability insurance policy naming as additional
insured the Village, its officers, boards, commissions, agents, and
employees in a form satisfactory to the Village. The policy shall
protect the Village and its agencies and employees against liability
for loss or damages for personal injury, death or property damage
occasioned by the operations of grantee under any franchise granted
hereunder, in the amounts of a) $1,000,000 for bodily injury or death
to anyone person with the limit however of $2,000,000 for bodily injury
or death resulting from anyone accident, and b) $1,000,000 for property
damage resulting from anyone accident. A copy of or certificate evidencing
the current in-force policy shall be deposited with the Village Clerk/Treasurer.
A grantee is not responsible for failure to provide adequate
service caused by acts of God, strikes, governmental or military action,
or other conditions beyond its control including the lack of material
or parts. Except as otherwise provided, upon interruption of service
of greater than 48 hours without the prior express permission of the
Village, the grantee shall provide its subscribers with a refund based
on the following formula:
|
Basic Service Rate x # of Days/#of Days in Month
|
A grantee of a franchise hereunder shall pay to the Village
a fee in an amount as designated in the franchise agreement, which
amount shall not be less than 3% of grantee's gross revenues.
Such payment shall commence as of the effective date of the franchise
or any renewal date. The Village, on an annual basis, shall be furnished
a statement within 90 days of the close of the calendar year, either
audited and certified by an independent certified public accountant
or certified by a financial officer of the grantee, reflecting the
total amount of gross revenue derived from the provision of cable
service during the period covered by the payment.
A.
The Village shall have the right to audit a grantee's fiscal and financial records, and to recompute any amounts that are payable under § 218-16 by the grantee for a period of six months after receipt thereof, after which payments shall be final The expenses for such an audit shall be borne by the Village unless the audit discloses an underpayment to the Village of 10% or more, in which case the costs of the audit shall be borne by the grantee as a cost incidental to the enforcement of its franchise. Any additional amounts due to the Village as a result of the audit shall be paid within 60 days following written notice to the grantee by the Village of the underpayment, which notice shall include a copy of the audit.
B.
No acceptance of any payment by the Village shall be construed as
a release or as an accord and satisfaction of any claim the Village
may have for further or additional sums payable as a franchise fee
under this chapter or for the performance of any other obligations
of the grantee.
C.
The franchise fee shall be paid on an annual basis and shall be made
no later than 90 days following the end of each calendar year.
A.
An owner or operator of an apartment building, condominium, nursing
home, mobile home park, or any other rental facility may not interfere
with or charge a fee for the installation of cable television system
facilities for the use of a lessee of said property or premises, except
that such owner or operator may require:
(1)
Installation to conform to reasonable conditions necessary to protect
the safety, appearance and functioning of the premises;
(2)
The grantee, occupant or tenant to pay for the installation, operation
or removal of such facilities;
(3)
The grantee, occupant, or tenant to agree to indemnify the owner
or operator for any damages caused by the installation, operation
or removal of such facilities.
B.
It shall be unlawful for the grantee to reimburse or offer to reimburse
any person, or for any person to demand or receive reimbursement from
the grantee, for the placement upon the premises of such person of
grantee's facilities necessary to connect such person's
premises to the distribution lines of grantee to provide cable service
to said premises.
C.
A landlord may not discriminate in the amount of rent charged to
tenants or occupants who receive cable service and those who do not.
A.
The right is hereby reserved by the Village to adopt, in addition
to the provisions contained in this chapter and existing applicable
ordinances, such additional regulations as it shall find necessary
in the exercise of its police powers. Such regulations, by ordinance
or otherwise, shall be reasonable and not be in conflict with the
rights granted in this chapter and not be in conflict with the laws
of the state.
B.
The Village may, during the term of a franchise, free of charge where
aerial construction exists, maintain upon the poles of the grantee
within the Village limits wire and pole fixtures necessary for a police
and fire alarm system, such wires and fixtures to be constructed and
maintained to the satisfaction of the grantee and in accordance with
its specifications.
During the term of a franchise, the grantee shall provide free
cable service within the Village to any and all schools whether private,
public, or parochial, as may be more specifically described in the
franchise agreement. The grantee may charge for usual installation
costs.
Should any word, phrase, clause, sentence, paragraph, or portion
of this chapter and/or a franchise be declared to be invalid by a
court of competent jurisdiction, such adjudication shall not affect
the validity of this chapter and the franchise as a whole, but shall
only affect the portion thereof declared to be invalid; and the Village
Board hereby expressly states and declares that it would nonetheless
have passed this chapter and granted the franchise had it known that
any such word, phrase, clause, sentence, subsection or portion of
said chapter or franchise were invalid.
Any franchise granted under this chapter shall be effective
upon execution by the Village and grantee of a franchise agreement
and the franchise shall continue in force for a period of 15 years
from the date of said franchise agreement.
A.
Notice of violation. The Village shall provide the grantee with a
detailed written notice of any franchise violation upon which it proposes
to take action, and a ninety-day period within which the grantee may:
(1)
Demonstrate that a violation does not exist or cure an alleged violation;
or
(2)
If the nature of the violation prevents correction of the violation
within 90 days, to initiate a reasonable plan of action to correct
such violation (including a projected date by which it will be completed)
and notify the Village of such plan of action;
(3)
Default. If grantee fails to disprove or correct the violation within 90 days or, in the case of a violation which cannot be corrected in 90 days and the grantee has failed to initiate a reasonable plan of corrective action and to correct the violation within the specified time frame, then Village may declare the grantee in default, which declaration must be in writing. In the event that the Village declares the grantee in default, the Village shall have the right to institute legal proceedings to collect damages from the date of declaration of default, or to exercise any other rights and remedies afforded to the Village in law or equity, provided, however, that the Village may institute revocation proceedings against grantee only after declaration of default, pursuant to Subsection D and only on the grounds set forth therein.
B.
Hearing available to grantee. Within 15 days after receipt of a written,
declaration of default from the Village, the grantee may request,
in writing, a hearing before the Village or its agent, in a full public
proceeding affording due process. Such hearing shall be held within
30 days of the receipt of the request therefor and a decision rendered within 10 days after
the conclusion of the hearing. Any decision shall be in writing and
shall be based upon written findings of fact.
C.
Appeal of default. The grantee may appeal a declaration of default
to a court of competent jurisdiction.
D.
Revocation. The Village may revoke the franchise only after declaration
of default and only for defaults by the grantee arising from the following
circumstances:
(1)
Violation of material provision of the franchise, which violation
is not cured by the grantee after notice by the Village.
(2)
The grantee willfully or persistently violates any material orders
or rulings of any regulatory body having jurisdiction over the franchise.
(3)
The grantee willfully fails to acquire the insurance required by
the franchise.
E.
Procedures governing revocation.
(1)
The Village shall give written notice to the grantee of its intent
to revoke the franchise and the lawful grounds therefor. The grantee
shall have 90 days from such notice to object, in writing, and to
state its reasons for such objection. In the event the Village has
not received a response satisfactory to it, it may then proceed to
place its request for termination of the franchise at a Village Board
meeting. The Village shall cause to be served upon the grantee, at
least 10 days prior to the time and place of such meeting, a written
notice of this intent to request such termination, and the time and
place of the meeting, notice of which shall be published by the Village
at least once, 10 days before such meeting in a newspaper of general
circulation within the Village.[1]
(2)
In addition to the grantee's right to appeal any declaration of default under § 218-22D, if the Village orders the termination of the franchise, the grantee shall have the right to appeal the determination of the Village within 30 days to any agency or court of competent jurisdiction for de novo review. The Village's determination to terminate the franchise shall not be effective pending final resolution of all appeals under this section.
This chapter shall be amended to incorporate all amendments
to the statutes, rules and regulations of the federal government as
they are promulgated by the federal government. Any provision herein,
in conflict with or preempted by said rules, regulations or statutes,
shall be superseded.
This chapter shall be amended to incorporate all amendments
to the statutes, rules and regulations of the federal government as
they are promulgated by the federal government. Any provision herein,
in conflict with or preempted by said rules, regulations or statutes,
shall be superseded.
A grantee may promulgate such rules, regulations, terms and
conditions governing the conduct of its business as shall be reasonably
necessary to enable the grantee to exercise its rights and perform
its obligations under the franchise and to assure uninterrupted service
to all its subscribers. However, such rules, regulations, terms and
conditions shall not be in conflict with the provisions of this chapter
or the laws of the state.
By the adoption of this chapter, the Village expressly waives
all objections it has or may have to the legal rights of the grantee
to attach its cables, equipment, and transmission lines to the poles
of the Village, pursuant to an agreement or to the poles of the public
utilities and the authority of such public utilities to grant such
right to the grantee.
A grantee shall have no recourse whatsoever against the Village
for any loss, cost or expense, or damage arising out of any provision
or requirements of a franchise or because of the enforcement thereof
by the Village, or for the failure of the Village to have authority
to grant all or any part of the franchise. The grantee expressly acknowledges
that in accepting any franchise it does so relying on its own investigation
and the understanding of the power and authority of the Village to
grant the franchise. By accepting a franchise, a grantee acknowledges
that it has not been induced to enter in to the franchise by any understanding
or promise or other statement, whether verbal or written, by or on
behalf of the Village or by any other third person concerning any
term or condition of the franchise not expressed herein or in the
franchise agreement. The grantee further acknowledges by acceptance
of the franchise that it has carefully read the terms and condition
hereof, and is willing to and does accept all the risks of the meeting
of such terms and conditions and agrees that in the event of any ambiguity
therein or in the event of any dispute over the meaning thereof the
same shall be construed strictly against the grantee and in favor
of the Village.
A.
A grantee shall give prior notice to the Village specifying the names
and addresses of any entity, other than the grantee, that performs
services pursuant to the franchise; provided, however, that all provisions
of the franchise remain the responsibility of the grantee.
B.
All provisions of any franchise shall apply to any subcontractor
or other performing any work or services pursuant to the provisions
of the franchise.
The grantee agrees by acceptance of a franchise that it will
not at any time set up against the Village in a claim or proceeding
any condition or term of the franchise as unreasonable, arbitrary
or void, or that the Village had no proper authority to make such
term or condition, but shall be required to accept the validity of
the terms and conditions of the franchise in their entirety.
A.
It shall be unlawful for any person, firm or corporation to make
any unauthorized connection, whether physically, electrically, acoustically,
inductively or otherwise, with any part of a cable television system
within this Village for the purpose of enabling himself or other to
receive any television signal, radio signal, picture, program or sound,
without payment to the grantee.
B.
It shall be unlawful, for any person, without the consent of the
grantee, to willfully tamper with, remove or injure a cable television
system.
This chapter shall take effect and be in force on October 9,
2005.
